Dokad Trustees Ltd v Auckland Council
[2022] NZCA 177
•11 May 2022 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA708/2021 [2022] NZCA 177 |
| BETWEEN | DOKAD TRUSTEES LIMITED |
| AND | AUCKLAND COUNCIL |
| Counsel: | No appearance for Appellant |
Judgment: | 11 May 2022 at 11.00 am |
JUDGMENT OF GODDARD J
AThis Court has jurisdiction to hear the appeal by Dokad Trustees Ltd.
BLeave is granted under r 6(1) of the Court of Appeal (Civil) Rules 2005 for the notice of appeal and other documents filed on behalf of Dokad Trustees Ltd to date to be filed notwithstanding any failure to comply with r 30 of the Rules, or any other requirement for documents to be signed by a lawyer.
CLeave is declined for Mr Mawhinney to represent Dokad Trustees Ltd. Any documents filed on behalf of the appellant from this date onwards must clearly identify by whom they are signed, and by whom they are filed. Documents that are not filed by a lawyer acting for Dokad Trustees Ltd should not be accepted for filing by the Registrar.
DThe second respondent is excused from further attendance in this appeal.
EAn extension of time is granted for filing the case on appeal, and for applying for a hearing date, until Thursday, 30 June 2022.
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REASONS OF THE COURT
Background
In a judgment delivered on 7 December 2021 I set aside decisions of the Deputy Registrar to decline to accept for filing a notice of appeal and an amended notice of appeal that Dokad Trustees Ltd (Dokad) had sought to file in this Court.[1] The appeal was retrospectively accepted for filing on 27 October 2021, and the Registrar set security for costs for the appeal at $7,060. Security for costs was required to be paid by 24 November 2021 being 20 working days after the original notice of appeal was filed.[2]
[1]Dokad Trustees Ltd v Auckland Council [2021] NZCA 660.
[2]Court of Appeal (Civil) Rules 2005, r 35(3).
The amended notice of appeal relates to two High Court judgments. In the first judgment (the leave judgment),[3] the High Court held that Dokad could not bring certain civil proceedings in the Environment Court or related judicial review proceedings in the High Court, because:
(a)Dokad is an entity controlled by Mr Peter Mawhinney, who is subject to an order under s 166 of the Senior Courts Act 2016 that restrains him, in any capacity, from commencing or continuing any civil proceeding relating to specified parcels of land in the Waitākere Ranges;
(b)Mr Mawhinney had been declined leave to bring the relevant proceedings in the Environment Court and in the High Court; and
(c)in circumstances where Mr Mawhinney had been declined leave to bring the relevant proceedings, Dokad — an entity controlled by Mr Mawhinney — could not itself commence either proceeding.
[3]Dokad Trustees Ltd v Auckland Council [2021] NZHC 2603 [Leave judgment].
In the second judgment, the High Court awarded costs of $4,166.63 against Mr Mawhinney and Dokad, jointly and severally, in connection with the unsuccessful leave application.[4]
[4]Dokad Trustees Ltd v Auckland Council [2021] NZHC 2930 [Costs judgment] at [9].
Dokad’s appeal to this Court relates to both the leave judgment and the costs judgment. On 13 December 2021 I directed that it should be treated as a single appeal against two judgments, rather than as two appeals.
In December 2021 Dokad applied for security for costs to be dispensed with, or alternatively a reduction in the amount of security for costs to be paid. Dokad also sought an extension of time to pay security for costs. On 23 February 2022 the Deputy Registrar declined to dispense with or reduce security for costs. The date for payment of security for costs of $7,060 following that decision was 9 March 2022. Security for costs has not yet been paid.
The issues addressed in this judgment
Auckland Council and Dokad have each filed memoranda raising a number of procedural issues in connection with the appeal. I deal with each of those issues below. I have attempted to address the issues in a logical order, rather than in the order in which they were raised by the parties in their memoranda.
Jurisdiction to hear the appeal
Auckland Council submit that the appeal is brought from decisions made by the High Court on an interlocutory application, and that this Court does not have jurisdiction to hear the appeal unless leave is granted by the High Court under s 56(3) of the Senior Courts Act, or by this Court under s 56(5) if the High Court refuses leave to appeal.
Section 56 of the Senior Courts Act provides:
56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals—
(a)from a judgment, decree, or order of the High Court:
(b)under the Criminal Procedure Act 2011:
(c)from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.
(2)Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b)granting summary judgment.
(5)If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.
(6)If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.
The leave judgment brought Dokad’s judicial review proceeding to an end. Although the High Court did not make a formal order dismissing Dokad’s proceeding, that was the effect of the judgment.
The scheme of s 56 is that appeals as of right are reserved for final determinations in respect of a proceeding. A leave filter applies to appeals from
decisions on interlocutory applications in order to avoid delay and unnecessary cost. The underlying assumption is that such decisions are made in the course of a proceeding, and appeal rights should be exercised when the proceeding comes to an end. If a procedural decision has affected the ultimate outcome, that issue can be raised in an appeal against the substantive High Court decision that concludes the proceeding: see s 56(6). I consider that s 56(4) must be interpreted purposively, to apply to decisions that have the effect of bringing to an end the whole of a proceeding. Such a decision is, for the purposes of s 56(4), a decision that dismisses the proceeding.I consider that s 56(4), read in this purposive manner, applies to the leave judgment. So leave is not required under s 56(3). Nor is leave required to appeal from the associated costs decision. Plainly that would be the case if the costs decision were included in the leave judgment. It makes no difference that costs were determined subsequently, in a separate judgment.
It follows that this Court has jurisdiction to hear the appeals against the leave judgment and the costs judgment.
Did the notices of appeal comply with the Court’s Rules?
Auckland Council submits that the notices of appeal that were presented for filing in this Court did not comply with r 30 of the Court of Appeal (Civil) Rules 2005 (Rules), which provides:
30 Form of appeal
(1)A notice of appeal or cross-appeal must be in form 2 of Schedule 1 or in a form to similar effect.
(1A)A notice of appeal or cross-appeal must be signed by the appellant or respondent personally or by that party’s lawyer.
(2)If a notice of appeal or cross-appeal is defective, a Judge may require the party who has filed the notice to remedy the defect within a specified period of not less than 10 working days.
(3)If the defect is not remedied within the specified period, the appeal is to be treated as having been abandoned.
Auckland Council says that it appears that Mr Peter Mawhinney signed the notice of appeal, but that is not clear as the person who signed the notice of appeal is not named.
In any event, Auckland Council submits, Dokad is a company so cannot sign the form “personally” as required by r 30(1A). The notices of appeal have not been signed or filed by a lawyer. That is required by the principle in Re G J Mannix Ltd.[5] No leave was sought by the appellant to be represented by a person other than a lawyer, and Dokad has not established the sort of exceptional circumstances that might justify granting leave for such representation.
[5]Re G J Mannix Ltd [1984] 1 NZLR 309 (CA).
Nor, Auckland Council submits, has leave been granted under r 6 of the Rules for the appeals to be filed despite not complying with r 30. Rule 6 provides:
6 Effect of non-compliance with rules
(1)If a document does not comply with these rules, the document cannot be accepted for filing unless a Judge or the Registrar gives leave for the document to be filed.
(2)An application or an appeal is not invalid merely because there has been a failure to comply with these rules in the course of the application or appeal.
(3)However, the Court may set aside, amend, or deal with the application or appeal, or part of the application or appeal, in any other manner and on any terms that the Court thinks appropriate.
In Re G J Mannix Ltd this Court held that it is “well settled” that “a company has no right to be represented in the conduct of a case in Court except by a barrister; or by a solicitor in Courts or proceedings where solicitors have the right of audience”.[6] Cooke J continued:[7]
There is a cognate rule that, apart from statutory exceptions, a corporation has no right to bring or carry on proceedings in a Court except by a solicitor. This refers to the filing of documents - writs, statements of defence, notices of appeal, etc.
[6]At 310.
[7]At 311.
This principle has been affirmed by this Court on numerous occasions.[8]
[8]See for example Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [25]–[34]; Kai Iwi Tavern Ltd v NZ Guardian Trust Co Ltd [2013] NZCA 199 at [6]–[8]; Dreamtech Designs and Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZCA 491, [2015] 23 PRNZ 141 at [8]–[9]; and Jayashree Ltd v Moore [2022] NZCA 151 at [5].
It is clear that Dokad requires leave to be represented by Mr Mawhinney at any hearing of the appeal. Dokad seeks leave for Mr Mawhinney to represent it: I address that application below.
In Mannix Cooke J observed that arguably there might be more ground for relaxing the cognate rule that a corporation has no right to file documents except by a solicitor.[9] It seems to me that the case for relaxation of that restriction for access to justice reasons is even stronger today than it was in 1984 when Cooke J made that observation. But that issue should be determined in a suitable case following full argument. For present purposes, on the assumption that the cognate rule still exists I grant leave under r 6(1) of the Rules for the notices of appeal and other documents filed on behalf of Dokad to date to be filed notwithstanding any failure to comply with r 30 of the Rules, or any other requirement for documents to be signed by a lawyer.
Application for Mr Mawhinney to represent Dokad
[9]Re G J Mannix Ltd, above n 5, at 311.
Dokad applies for leave to put its case through Mr Mawhinney. The application is made in a memorandum that appears to have been signed by Mr Mawhinney. He says Dokad cannot afford the costs of retaining a lawyer. He says he is the “main mover” in the Dokad projects that are the subject of the proceedings. He is “the only person with any factual and legal knowledge that Dokad has to prosecute the appeal”.
Dokad says that it was not represented by a lawyer in the High Court. Notwithstanding this, the High Court made a decision against Dokad. Dokad submits that if it is good enough for Dokad to be made the subject to what was in effect a restraining order while unrepresented by a lawyer, then it is good enough for Dokad’s case before this Court to be articulated by a non-lawyer. The memorandum adds that Dokad was not heard in the High Court: the application for leave by Mr Mawhinney was determined on the papers. Indeed Dokad was not a party to the application for leave by Mr Mawhinney.
Alternatively, Dokad asks that counsel be appointed to assist the Court. Dokad submits that there is an important question of public interest to be resolved about the extent to which a restraining order under s 166 of the Senior Courts Act extends to other persons such as Dokad.
It would not be appropriate to grant Dokad’s application to be represented by Mr Mawhinney at the hearing of this appeal, for three reasons.
First, Dokad has provided no evidence to support its claim that it is unable to afford the cost of legal representation.
Second, this is not a case that comes within the exceptional circumstances that justify departing from the Mannix rule. In Mannix Cooke J considered that leave might be granted:[10]
… as a reserve or occasional expedient … in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel.
This is not an emergency situation. The issues raised by the appeal are by no means straightforward. It is not unduly technical or burdensome to insist on counsel conducting the proceeding and presenting argument. The need for independent representation is particularly acute to ensure that the appeal is properly confined to the narrow legal issue that it raises, and does not become a vehicle for improper pursuit of other arguments.
[10]Re G J Mannix Ltd, above n 5, at 314.
That leads into the third reason for declining the application. Mr Mawhinney was, at the time the proceedings and the appeal were commenced, subject to an order under s 166 of the Senior Courts Act. He was declined leave to pursue the claims. It would be inconsistent with the policy that underpins s 166 for Mr Mawhinney to be authorised to represent Dokad, and (as a result) authorised to argue for Dokad the claims that he is not entitled to pursue on his own behalf. One of the rationales that underpins the Mannix rule is the need for professional objectivity in the presentation of a case. The s 166 order in respect of Mr Mawhinney indicates that he is not well‑placed to bring an appropriate level of professional objectivity to the presentation of Dokad’s arguments.
Leave is therefore declined for Mr Mawhinney to represent Dokad. Any documents filed on behalf of Dokad from this date onwards must clearly identify by whom they are signed, and by whom they are filed. Documents that are not filed by a lawyer acting for Dokad should not be accepted for filing by the Registrar.
Position of second respondent
The Environment Court is named as the second respondent in the appeal. The second respondent has notified the Court that it abides the decision of the Court in this appeal. It seeks leave to be excused from further attendance in this matter.
That is plainly appropriate. The second respondent is excused from further attendance in this appeal.
Application for extension of time
Dokad seeks an extension of time to apply for a hearing date, and to file the case on appeal. The grounds for the application are that events may have overtaken the appeal proceeding, as a hearing that has been set down before Commissioners of objections to certain decisions by Auckland Council may render the appeal redundant.
Auckland Council does not oppose the application for an extension of time under r 43 of the Rules, and abides the decision of the Court.
It would be undesirable for Dokad and Auckland Council to be put to the cost of preparing a case on appeal, and taking further substantive steps in the appeal, if there is a real prospect that it will be overtaken by events.
In these circumstances I grant an extension of time for filing the case on appeal, and for applying for a hearing date, until Thursday, 30 June 2022. Security for costs must be paid before applying for a hearing date, as required by r 37(2) of the Rules.
Result
This Court has jurisdiction to hear the appeal by Dokad.
Leave is granted under r 6(1) of the Rules for the notice of appeal and other documents filed on behalf of Dokad to date to be filed notwithstanding any failure to comply with r 30 of the Rules, or any other requirement for documents to be signed by a lawyer.
Leave is declined for Mr Mawhinney to represent Dokad. Any documents filed on behalf of Dokad from this date onwards must clearly identify by whom they are signed, and by whom they are filed. Documents that are not filed by a lawyer acting for Dokad should not be accepted for filing by the Registrar.
The second respondent is excused from further attendance in this appeal.
An extension of time is granted for filing the case on appeal, and for applying for a hearing date, until Thursday, 30 June 2022.
Solicitors:
Auckland Council, Auckland for First Respondent
Crown Law Office, Wellington for Second Respondent
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